9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Offenses Under Title 18 (18 USC 1341 - 18 USC 2113)

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant devised a scheme or plan for obtaining money or property by making false promises or statements, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the promises or statements were false or fraudulent;

Third, the promises or statements were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.

A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

Use this instruction with respect to a crime charged under the second clause of 18 USC 1341.

Where more than one false promise or statement is charged, a judge might consider submitting special interrogatories to the jury to assure unanimity on at least one promise or statement. See Instruction 7.9 (Specific Issue Unanimity). See also United States v. Lyons, 472 F.3d 1055 (9th Cir.), cert. denied, 127 S. Ct. 2285 (2007) for a discussion as to when a specific unanimity instruction is appropriate.

Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established. United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir.1996). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1078 (9th Cir.2008).

Success of the scheme is immaterial. United States v. Rude, 88 F.3d 1538, 1547 (9th Cir. 1996); United States v. Utz, 886 F.2d 1148, 1150-1151 (9th Cir. 1989), cert. denied, 497 U.S. 1005 (1990).

See Schmuck v. United States, 489 U.S. 705, 712 (1989) (mailing that is "incident to an essential part of the scheme" or "a step in the plot" satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228–29 (9th Cir.1996) (same).

See United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002) (government-issued license does not constitute property for purposes of § 1341).

Modified 3/2009 (For 2003 version see below).

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6/2003 Version

The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant made up a scheme or plan for obtaining money or property by making false promises or statements, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the promises or statements were false;

Third, the promises or statements were material, that is they would reasonably influence a person to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.

A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

Where more than one false promise or statement is charged, a judge might consider submitting special interrogatories to the jury to assure unanimity on at least one promise or statement. See Instruction 7.9 (Specific Issue Unanimity).

Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established. United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir.1996). The Ninth Circuit favorably discussed this definition of materiality in U.S. v. Johnson, 297 F.3d 845, 866 (9^th Cir. 2002), cert. denied 123 S.Ct. 1376 and cert denied by Eames v. United States (Mar. 31, 2003) 2003 WL 730241 and U.S. v. Tam, 240 F.3d 797, 802-803 (9^th Cir. 2001).

Success of the scheme is immaterial. United States v. Utz, 886 F.2d 1148, 1150-1151 (9th Cir. 1989), cert. denied, 497 U.S. 1005 (1990).

See Schmuck v. United States, 489 U.S. 705, 712 (1989) (mailing that is "incident to an essential part of the scheme" satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228––29 (9th Cir.1996) (same).

See U.S. v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002) (Government issued license does not constitute property for purposes of §§ 1341).

The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant made up a scheme or plan for obtaining money or property by making false promises or statements, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the promises or statements were false;

Third, the promises or statements were material, that is they would reasonably influence a person to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.

A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

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2000 Version

The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant made up a scheme or plan for obtaining money or property by making false promises or statements, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the promises or statements were false;

Third, the promises or statements were material, that is they would reasonably influence a person to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.

A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

Where more than one false promise or statement is charged, a judge might consider submitting special interrogatories to the jury to assure unanimity on at least one promise or statement. See Instruction 7.9 (Specific Issue Unanimity).

Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established. United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir.1996).

Success of the scheme is immaterial. United States v. Utz, 886 F.2d 1148, 1150-1151 (9th Cir. 1989), cert. denied, 497 U.S. 1005 (1990).

See Schmuck v. United States, 489 U.S. 705, 712 (1989) (mailing that is "incident to an essential part of the scheme" satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228–29 (9th Cir.1996) (same).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Each member of a scheme to defraud is responsible for other co-schemers' actions during the course of and in furtherance of the scheme.

If you decide that a defendant was a member of a scheme to defraud and that the defendant had the intent to defraud, that defendant is responsible for what other co-schemers said or did to carry out the scheme, even if the defendant did not know what they said or did.

For a defendant to be guilty of an offense committed by a co-schemer [as part] [in furtherance] of the scheme, the offense must be one that could reasonably be foreseen as a necessary and natural consequence of the scheme to defraud.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

Comment

    See Comment following Instruction 8.101 (Mail Fraud–Scheme to Obtain Money or Property by False Promises).

    In the case of mail or wire fraud, the government need not prove a specific false statement was made. U.S. v. Woods, 335 F.3d 993, 999 (9th Cir. 2003). "Under the mail fraud statute the government is not required to prove any particular false statement was made. Rather, there are alternative routes to a mail fraud conviction, one being proof of a scheme or artifice to defraud, which may or may not involve any specific false statements." Id. (quoting United States v. Munoz, 233 F.3d 1117, 1131 (9th Cir. 2000) (internal citations omitted)).

The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant made up a scheme or plan to deprive [victim] of [his] [her] right to honest services;

Second, the defendant acted with the intent to deprive [victim] of [his] [her] right to honest services; and

Third, the defendant used, or caused someone to use, the mails to carry out or to attempt to carry out the scheme or plan.

A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as an important part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

See Comment following Instruction 8.101 (Mail Fraud–Scheme to Obtain Money or Property by False Promises).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

"To convict a person of wire fraud, the government must prove beyond a reasonable doubt that the accused (1) participated in a scheme to defraud; and (2) used the wires to further the scheme." United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir. 2000) (citation omitted).

"To sustain a conviction for fraud . . . , the government must prove beyond a reasonable doubt the element of specific intent." Ciccone, 219 F.3d at 1082 (citation omitted).

The only difference between mail fraud and wire fraud is that the former involves the use of the mails and the latter involves the use of wire, radio, or television communication in interstate or foreign commerce. In a wire fraud or attempted wire fraud case, the Committee recommends that the applicable mail fraud instructions (Instructions 8.101 (Mail Fraud–Scheme to Obtain money or Property by False Promises) and 8.102 (Mail Fraud–Scheme to Defraud)), be modified appropriately.

As with mail fraud, materiality is an essential element of the crime of wire fraud. Neder v. United States, 527 U.S. 1 (1999).

Rev.10/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly carried out a scheme or plan to deprive the [financial institution] of the intangible right of honest services;

Second, the defendant acted with the intent to deprive the [financial institution] of the intangible right of honest services; and

Third, the [financial institution] was federally [chartered] [insured].

See Comment following Instruction 8.101 (Mail Fraud–Scheme to Obtain Money or Property by False Promises).

For a definition of "financial institution," see 18 USC 20.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly made up a plan or scheme to deprive the [financial institution of the intangible right of honest services;

Second, the defendant acted with the intent to deprive the [financial institution] of the intangible right of honest services;

Third, the defendant did something that was a substantial step toward carrying out the plan or scheme, with all of you agreeing as to what constituted the substantial step; and

Fourth, the [financial institution] was federally [chartered] [insured].

Mere preparation is not a substantial step toward the commission of the crime of bank fraud.

See Comment following Instruction 8.101 (Mail Fraud–Scheme to Obtain Money or Property by False Promises).

For a definition of "financial institution," see 18 USC 20.

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly carried out a scheme or plan to obtain money or property from the [specify financial institution] by making false statements or promises, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the statements or promises were false;

Third, the statements or promises were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, [specify financial institution] was federally [chartered] [insured].

Modified 3/2009 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly carried out a scheme or plan to obtain money or property from the [financial institution] by making false statements or promises, with all of you agreeing on at least one particular false promise or statement that was made;

Second, the defendant knew that the statements or promises were false;

Third, the statements or promises were material, that is they would reasonably influence a bank to part with money or property;

Fourth, the defendant acted with the intent to defraud; and

Fifth, [financial institution] was federally [chartered] [insured].

In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), cert. denied, 513 U.S. 1059 (1994), the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:

You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant's belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.

See Comment following Instruction 8.101 ( (Mail Fraud–Scheme to Obtain Money or Property by False Promises)). Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality is a question of fact for the jury in prosecutions pursuant to 18 USC 1344, but is not an element in false statement prosecutions pursuant to 18 USC 1014. See United States v. Nash, 115 F.3d 1431, 1435 (9th Cir.1997) (citing United States v. Wells, 519 U.S. 482 (1997)).

For a definition of "financial institution," see 18 USC 20.

Cf. United States v. Allen, 88 F.3d 765, 768–69 (9th Cir.1996) (in prosecution for making false statements to a federally insured financial institution, the institution's federally insured status is an element of the offense).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly devised a plan or scheme to obtain money or property from the [specify financial institution] by false promises or statements;

Second, the promises or statements were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;

Third, the defendant acted with the intent to defraud;

Fourth, the defendant did something that was a substantial step toward carrying out the plan or scheme, with all of you agreeing as to what constituted the substantial step; and

Fifth, [specify financial institution] was federally [chartered] [insured].

Mere preparation is not a substantial step toward the commission of the crime of bank fraud.

See Instruction 7.9 (Specific Issue Unanimity).

Approved 3/2009

Modified 3/2009 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly made up a plan or scheme to obtain money or property from the [financial institution] by false promises or statements;

Second, the promises or statements were material, that is they would reasonably influence a bank to part with money or property;

Third, the defendant acted with the intent to defraud;

Fourth, the defendant did something that was a substantial step toward carrying out the plan or scheme, with all of you agreeing as to what constituted the substantial step; and

Fifth, [financial institution] was federally [chartered] [insured].

Mere preparation is not a substantial step toward the commission of the crime of bank fraud.

In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), cert. denied, 513 U.S. 1059 (1994), the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:

You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant's belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.

See Comment following Instruction 8.101 (Mail Fraud–Scheme to Obtain Money or Property by False Promises).

Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999).

For a definition of "financial institution," see 18 USC 20.

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [juror] was a [grand] juror;

Second, the defendant tried to influence or intimidate [juror] in the discharge of [his] [her] duties as a [grand] juror; and

Third, the defendant acted corruptly, or by threats of force, with the intent to obstruct justice.

See Comment at Instruction 3.16 (Corruptly–Defined).

As used in Section 1503, "corruptly" means that the act must be done with the purpose of obstructing justice. United States v. Rasheed, 663 F.2d 843, 851 (9th Cir.1981), cert. denied, 454 U.S. 1157 (1982).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [juror] was a [grand] juror [who assented to a [verdict] [indictment]];

Second, the defendant injured [juror] [or [his] [her] property] on account of [juror] having [been] [assented to the [verdict] [indictment] as] a [grand] juror; and

Third, the defendant acted corruptly or by threats or use of force, with the intent of [obstructing justice] [intimidating the [grand] juror].

See Comment to Instruction 8.108 (Obstruction of Justice–Influencing Juror).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

(18 USC 1621)

The defendant is charged in [Count _______ of] the indictment with perjury in violation of Section 1621 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath orally or in writing that [specify false testimony];

Second, the testimony was false[, with all of you agreeing as to which statement was false];

Third, the false testimony was material to the matters before [e.g., the grand jury]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the actions of [e.g., the grand jury]; and

Fourth, the defendant acted willfully, that is deliberately and with knowledge that the testimony was false.

The testimony of one witness is not enough to support a finding that the testimony of [defendant] was false. There must be additional evidence–either the testimony of another person or other evidence–which tends to support the testimony of falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

A statement which is literally true cannot support a conviction, even if it is misleading. United States v. Cook, 489 F.2d 286, 287 (9th Cir.1973). When the defendant is accused of multiple falsehoods, the jury must be unanimous on at least one of the charges in the indictment. Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970).

The last paragraph of the instruction concerning corroboration is worded to cover the case where the perjury is in the giving of testimony. Where the perjury consists of one or more false statements in a writing, such as an affidavit, it should be substituted for "testimony."

This paragraph applies to a charge of perjury in violation of 18 USC 1621 and to a charge of subornation of perjury in violation of 18 USC 1622. See Instruction 8.111 (Subornation of Perjury). In the case of a Section 1621 charge "the defendant" or the name of the defendant should be inserted. In the case of a Section 1622 charge, the name of the person alleged to have been suborned should be inserted.

A paragraph in the instruction concerning corroboration is not required where a defendant is accused of violation of 18 USC 1623. See Instruction 8.112 (False Declaration Before Grand Jury or Court).

Where the alleged false testimony is proved by circumstantial evidence, corroboration is not required. Gebhard v. United States, 422 F.2d 281, 288 (9th Cir.1970).

Corroborative evidence may be circumstantial and need not be independently sufficient to establish the falsity of the testimony. United States v. Howard, 445 F.2d 821, 822 (9th Cir.1971); Arena v. United States, 226 F.2d 227, 233 (9th Cir.1955).

Modified 3/2009 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with perjury in violation of Section 1621 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath orally or in writing that [false testimony];

Second, the testimony was false;

Third, the false testimony was material to the matters before [e.g., the grand jury]; and

Fourth, the defendant acted willfully, that is deliberately and with knowledge that the testimony was false.

[All of you must agree as to which statement was false.]

The testimony of one witness is not enough to support a finding that the testimony of [defendant] was false. There must be additional evidence—either the testimony of another person or other evidence—which tends to support the testimony of falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

The Committee believes that what is "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered" for purposes of Section 1621 is a question of law and need not be submitted to the jury.

The Supreme Court has held that materiality is a question of fact for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (in context of perjury prosecution). Accordingly, it is necessary to include materiality as an element of the offense in this instruction. See, e.g., Instruction 8.66 (False Statement to Government Agency).

A statement which is literally true cannot support a conviction, even if it is misleading. United States v. Cook, 489 F.2d 286, 287 (9th Cir.1973). When the defendant is accused of multiple falsehoods, the jury must be unanimous on at least one of the charges in the indictment. Vitello v. United States, 425 F.2d 416, 423 (9th Cir.), cert. denied, 400 U.S. 822 (1970).

The next to last paragraph of this instruction should be given when the indictment charges that the defendant made more than one false statement. See id. See also Instruction 7.9 (Specific Issue Unanimity).

The last paragraph of the instruction concerning corroboration is worded to cover the case where the perjury is in the giving of testimony. Where the perjury consists of one or more false statements in a writing, such as an affidavit, it should be substituted for "testimony."

This paragraph applies to a charge of perjury in violation of 18 USC 1621 and to a charge of subornation of perjury in violation of 18 USC 1622. See Instruction 8.111 (Subornation of Perjury). In the case of a Section 1621 charge "the defendant" or the name of the defendant should be inserted. In the case of a Section 1622 charge, the name of the person alleged to have been suborned should be inserted.

A corroboration instruction is not required where a defendant is accused of violation of 18 USC 1623. See Instruction 8.112 (False Declaration Before Grand Jury or Court).

Where the alleged false testimony is proved by circumstantial evidence, corroboration is not required. Gebhard v. United States, 422 F.2d 281, 288 (9th Cir.1970).

Corroborative evidence may be circumstantial and need not be independently sufficient to establish the falsity of the testimony. United States v. Howard, 445 F.2d 821, 822 (9th Cir.1971); Arena v. United States, 226 F.2d 227, 233 (9th Cir.1955), cert. denied, 350 U.S. 954 (1956).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with subornation of perjury in violation of Section 1622 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant voluntarily and intentionally persuaded [name of witness] to testify commit perjury;

Second, the defendant acted with the intent that [name of witness] would deceive the [court] [jury]; and

Third, [name of witness] committed perjury in that:

(a) [he] [she] testified under oath or affirmation at [describe proceeding] that [specify alleged false testimony];

(b) the testimony given was false[, with all of you agreeing at to which statement was false];

(c) at the time [name of witness] testified, [he] [she] knew the testimony was false; and

(d) the false testimony was material to the matter before the [court] [grand jury]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the [court] [grand jury’s investigations].

Modified 3/2009 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with subornation of perjury in violation of Section 1622 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant persuaded [witness] to testify falsely before [tribunal];

Second, [witness] falsely testified under oath that [false testimony];

Third, the false testimony was material to [e.g., the matters before the court]; and

Fourth, [witness] knew the testimony was false.

[All of you must agree as to which statement was false.]

See Comment following Instruction 8.110 (Perjury).

Regarding the final bracketed paragraph, see Instruction 8.110 (Perjury) and Instruction 7.9 (Specific Issue Unanimity).

The Supreme Court has held that materiality is a question of fact for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (in context of perjury prosecution). Accordingly, it is necessary to include materiality as an element of the offense in this instruction.

A perjury is an essential element of this offense. See Catrino v. United States, 176 F.2d 884, 886–87 (9th Cir.1949). The use of "any perjury" in Section 1622 evidences a Congressional intent that subornation of perjury is committed not only by one who procures another to commit perjury in violation of 18 USC 1621, but also by one who procures another to make a false statement in violation of 18 USC 1623. United States v. Gross, 511 F.2d 910, 915-916 (3d Cir.), cert. denied, 423 U.S. 924 (1975).

If the suborned testimony is in violation of 18 USC 1621, the "two-witness" or "corroboration" rule applies. See Instruction 8.110 (Perjury). However, corroboration is not required if the suborned testimony is in violation of 18 USC 1623. 18 USC 1623(e) Gross, 511 F.2d at 915–16.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with having made a false declaration in violation of Section 1623 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath before a [court] [grand jury];

Second, the testimony was false[, with all of you agreeing as to which statement was false];

Third, the defendant knew that the testimony was false; and

Fourth, the false testimony was material to the matters before the [court] [grand jury]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the [court] [grand jury’s investigations].

Modified 3/2009 (For 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with having made a false declaration in violation of Section 1623 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath [e.g., before a grand jury];

Second, the testimony was false; and

Third, the defendant knew that the testimony was false and material to [e.g., the matters before the grand jury].

[All of you must agree as to which statement was false.]

See Comment following Instructions 8.110 (Perjury) and 8.111 (Subornation of Perjury).

Regarding the final bracketed paragraph, see Instructions 8.110 (Perjury) , 8.111 (Subornation of Perjury) and 7.9 (Specific Issue Unanimity).

Materiality of the false declaration is an element of the offense and therefore an issue for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997). The government must present evidence from an earlier trial to prove that the statements were material; "simply offering the defendant’s statement itself is not enough. See Untied States v. Leon-Reyes, 177 F.3d 816, 819 (9th Cir. 1999).

Note that Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted by a judicial representative or an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir.1979). See also United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C.1973) (sworn deposition was an ancillary proceeding).

Section 1623(c) authorizes a person to be accused of having "made two or more declarations, which are inconsistent to the degree that one of them is necessarily false," and the government is not required to specify which declaration is false.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with mail theft in violation of Section 1708 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant stole a [letter] [package] from a [mail box] [mail carrier].

See United States v. Ellison, 469 F.2d 413, 415 (9th Cir. 1972) (jury may infer that the defendant stole an item of mail if a properly addressed and recently mailed item was never received by the addressee and was found in the defendant's possession).

If the letter or package was stolen from a mail depository other than a mail box or mail carrier, the instruction should be modified accordingly.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted mail theft in violation of Section 1708 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to steal mail from a [mail box] [mail carrier]; and

Second, the defendant did something that was a substantial step toward stealing the mail, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of mail theft.

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with possession of stolen mail in violation of Section 1708 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, a [letter] [package] was stolen from a mail box; and

Second, the defendant had possession of the [letter] [package] knowing that it had been stolen.

See Instruction 8.113 (Mail Theft) and Comment.

It is not necessary that the defendant knew the matter was stolen from the mail so long as the defendant knew that it was stolen. Barnes v. United States, 412 U.S. 837, 847 (1973).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [attempted] extortion by force in violation of Section 1951 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant induced [victim] to part with property by the wrongful use of threat of force or fear;

Second, the defendant acted with the intent to obtain the property that the defendant knew [he] [she] was not entitled to receive;

Third, commerce from one state to another [was] [would have been] affected in some way[; and]

[Fourth, the defendant did something that was a substantial step toward committing the crime of extortion by force, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward the commission of the crime of extortion by force.]

Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Act and the effect need only be probable or potential, not actual. United States v. Nelson, 137 F.3d 1094, 1102 (9th Cir. 1997) (citing United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir. 1996), cert. denied, 519 U.S. 1156 (1997) (citations omitted)), cert. denied, 119 S. Ct. 232 (1998). See also United States v. Yankowski, 184 F.3d 1071 (9th Cir. 1999) (holding that the commission or threat of violence may be a violation of the Hobbs Act as long as it is in furtherance of a plan to impede commerce by extortion or robbery).

"Property" under the Hobbs Act is not limited to tangible things; it includes the right to make business decisions and to solicit business free from coercion. United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir.1980), cert. denied, 450 U.S. 916 (1981).

See Instruction 7.9 (Specific Issue Unanimity). The bracketed language stating a fourth element applies to attempt to engage in extortion by force.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [attempted] extortion under color of official right in violation of Section 1951 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant was a [public official][person acting under official right];

Second, the defendant [[obtained] [intended to obtain]] [property] which [he] [she] knew [he] [she] was not entitled to;

Third, the defendant knew that the [property] [[was] [would be]] given in return for [taking] [withholding] some official action; [and]

Fourth, commerce or the movement of an article or commodity in commerce from one state to another [was] [would have been] affected in some way[; and]

[Fifth, the defendant did something that was a substantial step toward committing the crime of extortion under color of official right, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward the commission of the crime of extortion under color of official right.]

[The acceptance by a public official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official. However, if a public official demands or accepts [money] [property] [some valuable right] in exchange for a specific requested exercise of official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.]

See Evans v. United States, 504 U.S. 255, 267 (1992) ("The Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts").

The final paragraph should be included in cases involving an alleged campaign contribution. See Evans, 504 U.S. at 257. Regarding the application of the Hobbs Act to campaign contribution cases, see McCormick v. United States, 500 U.S. 257 (1991) (clarified in Evans, 504 U.S. at 267).

The Hobbs Act applies to extortion of police officers and anyone acting "under the color of official right." United States v. Freeman, 6 F.3d 586, 593 (9th Cir. 1993) (approving "under color of official right" instruction relating to legislative aide).

See Instruction 7.9 (Specific Issue Unanimity).

See also Comment following Instruction 8.117 (Hobbs Act–Extortion or Attempted Extortion by Force).

The bracketed language stating a fifth element applies to attempt to engage in extortion under color of official right.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [conducting] [financing] [managing] [supervising] [directing] [owning] an illegal gambling business in violation of Section 1955 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [conducted] [financed] [managed] [supervised] [directed] [owned] a business consisting of [e.g., bookmaking];

Second, [e.g., bookmaking] is illegal gambling in [state] [city];

Third, the business involved five or more persons who [conducted] [financed] [managed] [supervised] [directed] [owned] all or part of the business; and

Fourth, the business [had been in substantially continuous operation by five or more persons for more than thirty days][had a gross revenue of $2,000 in any single day].

["Substantially continuous operation for more than thirty days" does not mean that the business had to be in operation every day for more than thirty days. It means that for more than thirty days the business operated upon a regular schedule.]

["Gross revenue" means the total amount of money wagered in one day.]

Where jurors could find from the evidence two separate thirty-day periods, the jury must be instructed that they must unanimously agree on the same period. United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir.1988).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [conducting] [attempting to conduct] a financial transaction to promote [unlawful activity] in violation of Section 1956(a)(1)(A) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [prior, separate criminal activity];

Second, the defendant knew that the property represented the proceeds of [prior, separate criminal activity]; [and]

Third, the defendant acted with the intent to promote the carrying on of [unlawful activity being promoted] [; and]

[Fourth, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing the crime of conducting a financial transaction to promote an unlawful activity.]

A financial transaction is a transaction involving [the movement of funds by wire or other means] [one or more monetary instruments] [the use of a financial institution which is engaged in _______ or the activities of _______] which affect interstate or foreign commerce in any way.

This instruction was approved in United States v. Sayakhom, 186 F.3d 928, 940 (9th Cir.1999).

Where the prior, separate criminal activity is gambling, the term "proceeds" must be defined as "profits." United States v. Santos, ___ U.S. ___ , 128 S.Ct. 2020, 2025 (2008) (plurality opinion). Whether the instruction must now be modified in all or some other cases to define "proceeds" to mean "profits" pursuant to Santos is unclear. Compare United States v. Yusuf, 536 F.3d 178, 186 n.12 (3rd Cir. 2008) (holding that Santos overruled United States v. Grasso, 381 F.3d 160, 169 (3rd Cir. 2004), which held that money laundering proceeds were gross receipts) and United States v. Hedlund, 2008 WL 4183958 (N.D. Cal. Sept. 9, 2008) (in all cases "proceeds" must be limited to "profits") with United States v. Orosco, 575 F.Supp.2d 1214 (D. Colo. 2008) (where prior, separate criminal activity is not gambling Tenth Circuit precedent holding "proceeds" means "gross receipts" applies). In United States v. Akintobi, 159 F.3d 401, 403 (9th Cir. 1998). the Ninth Circuit explained that money laundering "proceeds" are those things which fall within the ordinary dictionary meaning of the word and so would include total revenue.

With respect to the second element, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir.1999).

Because it is a specific intent crime, it is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994). See also United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (applying Stein retroactively).

See Instruction 7.9 (Specific Issue Unanimity).

The bracketed language stating a fourth element applies to an attempt to engage in a financial transaction to promote unlawful activity.

Approved 3/2009

Comment Modified 3/2009 (For 2000 version see below).

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2000 Version

Comment

This instruction was approved in United States v. Sayakhom, 186 F.3d 928, 940 (9th Cir. 1999).

The government is not required to prove "as an element of the offense of money laundering, that the laundered money was obtained from prior, separate criminal activity." Sayakhom, 186 F.3d at 941 (explaining United States v. Savage, 67 F.3d 1435, 1441 (9th Cir. 1995)). The "prior, separate criminal activity" language of Savage "refers to the differentiation between money laundering and the predicate acts of mail fraud." 186 F.3d at 941.

The government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir. 1999).

It is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994), cert. denied, 513 U.S. 1181 (1995). See also United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (applying Stein retroactively).

See Instruction 7.9 (Specific Issue Unanimity).

The bracketed language stating a fourth element applies to an attempt to engage in a financial transaction to promote unlawful activity.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

8.121 Laundering Monetary Instruments

The defendant is charged in [Count _______ of] the indictment with [laundering] [attempting to launder] money in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [unlawful activity];

Second, the defendant knew that the property represented the proceeds of [prior, separate criminal activity]; [and]

Third, the defendant knew that the transaction was designed in whole or in part [to conceal or disguise the [nature] [location] [source] [ownership] [control] of the proceeds of [prior, separate criminal activity]] [to avoid a transaction reporting requirement under state or federal law][; and]

[Fourth, the defendant did something that was a substantial step toward committing the crime of laundering money, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing the crime of laundering money.]

A financial transaction is a transaction involving [the movement of funds by wire or other means] [one or more monetary instruments] [the use of a financial institution which is engaged in _______ or the activities of _______] which affect interstate or foreign commerce in any way.

The laws of the [United States] [state of _______] require the reporting of [reporting requirement].

Where the prior, separate criminal activity is gambling, the term "proceeds" must be defined as "profits." United States v. Santos, ___ U.S. ___ , 128 S.Ct. 2020, 2025 (2008) (plurality opinion). Whether the instruction must now be modified in all or some other cases to define "proceeds" to mean "profits" pursuant to Santos is unclear. Compare United States v. Yusuf, 536 F.3d 178, 186 n.12 (3rd Cir. 2008) (holding that Santos overruled United States v. Grasso, 381 F.3d 160, 169 (3rd Cir. 2004), which held that money laundering proceeds were gross receipts) and United States v. Hedlund, 2008 WL 4183958 (N.D. Cal. Sept. 9, 2008) (in all cases "proceeds" must be limited to "profits") with United States v. Orosco, 575 F.Supp.2d 1214 (D. Colo. 2008) (where prior, separate criminal activity is not gambling Tenth Circuit precedent holding "proceeds" means "gross receipts" applies). In United States v. Akintobi, 159 F.3d 401, 403 (9th Cir. 1998). the Ninth Circuit explained that money laundering "proceeds" are those things which fall within the ordinary dictionary meaning of the word and so would include total revenue.

If the defendant is charged with laundering a monetary instrument other than cash, see 18 USC 1956(c)(5), the instruction should be modified accordingly.

Because it is a specific intent crime, it is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994). See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir.1997) (applying Stein retroactively).

With respect to the second element of the instruction, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir.1999).

With respect to the third element of the instruction, see Cuellar v. United States, __ U.S. __, 128 S.Ct. 1994, 2002-06 (2008) (evidence of how money was moved insufficient to prove knowledge).

See Instruction 7.9 (Specific Issue Unanimity).

The bracketed language stating a fourth element applies to attempt to launder monetary investments.

Approved 3/2009

Comment Modified 3/2009 (For 2000 version see below).

****************************************************************************************************************************

2000 Version

Comment

If the defendant is charged with laundering a monetary instrument other than cash, see 18 USC 1956(c)(5), the instruction should be modified accordingly.

It is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994), cert. denied, 513 U.S. 1181 (1995). See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir.1997) (applying Stein retroactively).

The government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir. 1999).

See Comment to Instruction 8.120 (Financial Transaction to Promote Unlawful Activity).

The bracketed language stating a fourth element applies to attempt to launder monetary investments.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] funds to promote unlawful activity in violation of Section 1956(a)(2)(A) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States]; and

Second, the defendant acted with the intent to promote the carrying on of [unlawful activity] [; and]

[Third, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing the crime of transporting money to promote an unlawful activity.]

See Comments following Instructions 8.120 (Financial Transaction to Promote Unlawful Activity) and 8.121 (Laundering Monetary Instruments).

See Instruction 7.9 (Specific Issue Unanimity).

The bracketed language stating a third element applies to attempt to transport funds to promote unlawful activity.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] money for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States];

Second, the defendant knew that the money represented the proceeds of [prior, separate criminal activity]; [and]

Third, the defendant knew the transportation was designed in whole or in part [to conceal or disguise the [nature] [location] [source] [ownership] [control] of the proceeds of [prior, separate criminal activity]] [to avoid a transaction reporting requirement under state or federal law] [;and]

[Fourth, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step].

[Mere preparation is not a substantial step toward committing the crime of transporting money for the purpose of laundering.]

[The laws of the [United States] [State of _______] require the reporting of [reporting requirement].]

Where the prior, separate criminal activity is gambling, the term "proceeds" must be defined as "profits." United States v. Santos, ___ U.S. ____, 128 S.Ct. 2020, 2025 (2008) (plurality opinion). Whether the instruction must now be modified in all or some other cases to define "proceeds" to mean "profits" pursuant to Santos is unclear. Compare United States v. Yusuf, 536 F.3d 178, 186 n.12 (3rd Cir. 2008) (holding that Santos overruled United States v. Grasso, 381 F.3d 160, 169 (3rd Cir. 2004) which held that money laundering proceeds were gross receipts) and United States v. Hedlund, 2008 WL 4183958 (N.D. Ca. 2008) (in all cases "proceeds" must be limited to "profits") with United States v. Orosco, 575 F.Supp.2d 1214 (D. Colo. 2008) (where prior, separate criminal activity is not gambling Tenth Circuit precedent holding "proceeds" means "gross receipts" applies). In United States v. Akintobi, 159 F.3d 401, 403 (9th Cir. 1998) the Ninth Circuit explained that money laundering "proceeds" are those things which fall within the ordinary dictionary meaning of the word and so would include total revenue.

Because it is a specific intent crime, it is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994). See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir.1997) (applying Stein retroactively).

With respect to the second element of the instruction, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir.1999).

With respect to the third element of the instruction, see Cuellar v. United States, __ U.S. __, 128 S.Ct. 1994, 2002-06 (2008) (evidence of how money was moved insufficient to prove knowledge).

The bracketed language stating a fourth element applies to attempt to transport monetary instruments for the purpose of laundering.

See Instruction 7.9 (Specific Issue Unanimity).

Approved 3/2009

Comment Modified 3/2009 (For 2000 version see below).

****************************************************************************************************************************

2000 Version

Comment

See Comments following Instructions 8.120 (Financial Transaction to Promote Unlawful Activity) and 8.121 (Laundering Monetary Instruments).

The bracketed language stating a fourth element applies to attempt to transport monetary instruments for the purpose of laundering.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

8.123A Money Laundering

The defendant is charged in [Count ___ of] the indictment with money laundering in violation of Section 1957 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged or attempted to engage in a monetary transaction;

Second, the defendant knew the transaction involved criminally derived property;

Third, the property had a value of greater than $10,000;

Fourth, that the property was, in fact, derived from [describe the specified unlawful activity alleged in the indictment]; and

Fifth, the transaction occurred in the [United States] [otherwise as set forth in 18 USC 1957 (d)].

The term "monetary transaction" means the [deposit] [withdrawal] [transfer] or [exchange], in or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial institution. [The term "monetary transaction" does not include any transaction necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution.]

The term "financial institution" means [identify type of institution listed in 31 USC 5312 as alleged in the indictment].

The term "criminally derived property" means any property constituting, or derived from, the proceeds of a criminal offense. The government must prove that the defendant knew that the property involved in the monetary transaction constituted, or was derived from, proceeds obtained by some criminal offense. The government does not have to prove that the defendant knew the precise nature of that criminal offense, or knew the property involved in the transaction represented the proceeds of [specified unlawful activity as alleged in the indictment].

Although the government must prove that, of the property at issue more than $10,000 was criminally derived, the government does not have to prove that all of the property at issue was criminally derived.

Rev. 9/2003

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The crimes of [crimes charged] charged in Counts _______ of the indictment are racketeering acts. If you find the defendant guilty of [at least two of] the crimes charged in Counts _______ you must then decide whether those counts formed a pattern of racketeering activity.

All twelve of you must agree on the same two crimes which form a pattern of racketeering activity.

Unanimity as to the crimes forming a pattern of racketeering activity is appropriate under the reasoning of Richardson v. United States, 526 U.S. 813 (1999) (in continuing criminal enterprise prosecution, there must be unanimity as to the specific violations which make up the "continuing series of violations"). See also Instruction 7.9 (Specific Issue Unanimity).

The crime of [crime charged] is a racketeering act. In order for you to find that the defendant committed [or aided and abetted others in committing] the crime of [crime charged], the government must prove each of the following elements beyond a reasonable doubt:

[Elements of the crime.]

[All twelve of you must agree on the same two racketeering acts that the defendant committed [or aided and abetted in committing].]

There is no requirement that the defendant must have been convicted of the crime constituting an act of racketeering activity before the act can be used as part of the pattern of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). Even though a defendant has previously been acquitted of a crime in a state court, he can still be charged with the same crime in a RICO charge. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252 (1984).

A pattern of racketeering activity requires at least two acts of racketeering activity. 18 USC 1961(5). More than one crime may be charged as a racketeering act.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

A pattern of racketeering activity is at least two racketeering acts that have a relationship to each other and they amount to or pose a threat of continued criminal activity. Conduct forms a pattern if it consists of criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics. Sporadic activity or widely separated and isolated criminal activity does not form a pattern of racketeering activity.

If there is a genuine issue whether there were two racketeering activities within ten years, the instruction should be modified by inserting "within ten years" in the second line of the instruction after "racketeering acts."

In determining whether two racketeering activities occurred within ten years, any period of imprisonment after the commission of a prior act must be excluded.

See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985) (although at least two acts are necessary under the definition of "pattern of racketeering activity," those two acts may not be sufficient to constitute a pattern). See also H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989) (pattern of racketeering activity requires a "showing that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity"); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535-36 (9th Cir. 1992) (applying Northwestern Bell); Ikuno v. Yip, 912 F.2d 306, 309 (9th Cir. 1990) (same).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with using or investing income from racketeering activity in violation of Section 1962(a) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant received income, directly or indirectly, from a pattern of racketeering activity, or through a collection of an unlawful debt;

Second, the defendant used or invested, directly or indirectly, any part of that income or the proceeds of such income to [buy an interest or invest in] [establish] [operate] [enterprise]; and

Third, [enterprise] was engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction 8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity).

The enterprise in which a defendant invests must be an entity distinct from the defendant. Schreiber Distributing Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1396 (9th Cir. 1986).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with acquiring or maintaining an interest in or control of an enterprise in violation of Section 1962(b) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant, directly or indirectly, acquired or maintained an interest or control of [enterprise];

Second, the defendant did so through a pattern of racketeering activity or through collection of an unlawful debt; and

Third, [enterprise] engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction 8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity). See also Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1398-99 (9th Cir. 1986).

The enterprise in which a defendant invests must be an entity distinct from the defendant.

RICO predicate acts only require a de minimus impact on interstate commerce. United States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir. 1997).

Control under Section 1962(b) does not require "formal control." Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir. 1990).

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction
8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity).

Since an enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union," 18 USC 1981, the name of the legal entity should be used.

The enterprise cannot also be the RICO defendant when the charge is that the defendant violated 18 USC 1962(c).

See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003) (defining "conducts or participates" in the affairs of the enterprise).

Rev. 11/2003 (for 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of [enterprise or union] through a pattern of racketeering activity in violation of Section 1962(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant was employed by or associated with [enterprise or union];

Second, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of [enterprise or union] through a pattern of racketeering activity or collection of unlawful debt; and

Third, [enterprise or union] engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction 8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity).

Since an enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union," 18 USC 1981, the name of the legal entity should be used.

The enterprise cannot also be the RICO defendant when the charge is that the defendant violated 18 USC 1962(c).

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction
8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity).

The definition of "enterprise" in the first element of the instruction is from United States v. Turkette, 452 U.S. 576, 583 (1981).

See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003) (defining "conducts or participates" in the affairs of the enterprise").

Rev. 11/2003 (for 2000 version see below).

***********************************************************************************************

2000 Version

The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of an enterprise through a pattern of racketeering activity in violation of Section 1962(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, there was an enterprise consisting of a group of persons associated together for a common purpose of engaging in a course of conduct;

Second, the defendant was employed by or associated with the enterprise;

Third, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of the enterprise through a pattern of racketeering activity or collection of unlawful debt; and

Fourth, the enterprise engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between a state or the United States and a foreign country.

When racketeering acts are charged as separate counts in the indictment, see Instruction 8.124 (RICO–Racketeering Act–Charged as Separate Count in the Indictment). If racketeering acts are not charged as separate counts, see Instruction 8.125 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment).

For a definition of pattern of racketeering activity, see Instruction 8.126 (RICO–Pattern of Racketeering Activity).

The definition of "enterprise" in the first element of the instruction is from United States v. Turkette, 452 U.S. 576, 583 (1981).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [armed] bank robbery in violation of Section 2113 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant took money belonging to [financial institution];

Second, the defendant used force and violence, or intimidation in doing so; [and]

Third, the deposits of [financial institution] was then insured by the Federal Deposit Insurance Corporation[; and]

[Fourth, the defendant intentionally [struck or wounded [victim]] [made a display or force that reasonably caused [victim] to fear bodily harm] by using a [e.g., pistol]].

Armed bank robbery occurs when the bank robber "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device." 18 USC 2113(d). The Ninth Circuit has stated that there is no "difference of great magnitude" between "assault" and "put life in jeopardy." United States v. Brannon, 616 F.2d 413, 419 (9th Cir. 1980), cert. denied, 447 U.S. 908 (1980).

An object's ability to incite fear and violence because it appears to be dangerous is sufficient to render it a "dangerous weapon." See United States v. Boyd, 924 F.2d 945, 947 (9th Cir. 1991), cert. denied, 502 U.S. 828 (1991). For example, an unloaded firearm is a "dangerous weapon" within the meaning of the statute. McLaughlin v. United States, 476 U.S. 16 (1986). "Use" includes "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Bailey v. United States, 516 U.S. 137 (1995). Finally, "[w]hen a defendant claims to possess a gun during a robbery, a jury may reasonably infer that the defendant possessed a gun during the robbery." United States v. Jones, 84 F.3d 1206, 1210-11 (9th Cir. 1996), cert. denied, 519 U.S. 973 (1996).

In order to convict a defendant for armed bank robbery under an aiding and abetting theory, the Ninth Circuit requires the government to show beyond a reasonable doubt both that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery, and that the defendant intended to aid in that endeavor. United States v. Dinkane, 17 F.3d 1192, 1195 (9th Cir. 1994). Failure to properly instruct the jury on this issue constitutes reversible error. Id.

The use of a note during a bank robbery does not constitute armed robbery, but may be considered a crime of violence. United States v. Sanchez, 933 F.2d 742, 747 (9th Cir. 1991).

Bank robbery is a general intent crime. See, e.g., United States v. Burdeau, 168 F.3d 352, 356 (9th Cir.), cert. denied, 120 S. Ct. 388 (1999).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted bank robbery in violation of Section 2113 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to use force or intimidation to take money that belonged to [financial institution];

Second, the deposits of [financial institution] was then insured by the Federal Deposit Insurance Corporation; and

Third, the defendant did something that was a substantial step toward committing the crime of bank robbery, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of bank robbery.

See Instruction 7.9 (Specific Issue Unanimity).